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By: Michael P. Durkee, ESQ
Q&A
SMA Expert
Michael P. Durkee, a partner in the Walnut Creek
office of Allen Matkins, represents developers, public
agencies and interest groups in all aspects of
land use law. Mike is the principal author of Map
Act Navigator (1997-2011), and co-author of Ballot
Box Navigator (Solano Press 2003), and Land-Use
Initiatives and Referenda in California (Solano
Press 1990, 1991).
415.273.7455 mdurkee@allenmatkins.com
Mike wishes to thank Tom Tunny, Senior Counsel at
Allen Matkins, for his contribution to this article.
Question
Do you know whether the Legislature has taken any action
recently to extend the life of tentative maps and if so, what the
details of the extension are?
Discussion
Yes, in fact, the Legislature did recently approve another
extension of the life of certain tentative maps.
This past July 15th, Governor Brown signed into law AB 208
(Fuentes), which extends for two years the life of those tentative and
vesting tentative maps that were still alive on July 15, 2011 (the date
the new law took effect) and that would have otherwise expired
before January 1, 2014.
AB 208 builds upon two earlier legislative extensions given during
this prolonged economic downturn: (1) the 24-month extension
granted by AB 333 (Fuentes) in 2009; and (2) the 12-month extension
granted by SB 1185 (Lowenthal) in 2008. With nearly 2,500
approved tentative maps representing nearly 330,000 housing units
in California, this measure is significant.
AB 208 creates new Government Code section 66452.23,
which recognizes that this extension is available in addition to all of
the other extensions (or "stays") already recognized by the
Subdivision Map Act (i.e., Sections 66452.6, 66452.11,
66452.13, 66452.21, 66452.22, and 66463.5). So, for example,
even if a tentative map qualifies for the new 24-month extension
granted by AB 208, this would not preclude the subdivider from
employing the phased final map extensions provided under
Government Code section 66452.6(a)(1) and/or any applicable litigation
stays pursuant to Government Code section 66452.6(c).
When calculating whether a tentative map would otherwise
expire before January 1, 2014 and thereby be eligible for AB 208's
two-year extension, one must include any discretionary extension
granted by a city or county pursuant to Government Code sections
66452.6(e) or 66463.5(c) on or before July 15, 2011, and any
extensions effectuated through the filing of one or more multiple
final maps pursuant to Government Code section 66452.6(a) on or
before July 15, 2011. One is not required to count any time that
the map's life is stayed by litigation or a development moratorium
pursuant to Government Code sections 66452.6 or 66463.5.
Like AB 333, AB 208 includes provisions that change the "one
bite of the apple" rules set forth in Government Code section 65961
in two ways. First, it shortens from five to three years the period of
time after the recordation of the final map during which new conditions
cannot be imposed on a project. Second, AB 208 provides
that for any tentative or parcel map subject to AB 208's two-year
extension, Section 65961 does not prohibit a local agency "from
levying a fee or imposing a condition that requires the payment of a
fee … upon the issuance of a building permit, including, but not limited
to, a fee defined in Section 66000" [the Mitigation Fee Act].
(Gov. Code § 65961(f).) Thus, a local agency may attempt to impose
fees or fee-based conditions during building permit issuance. The
"legality" of such local agency efforts would depend on the facts of
each case.
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